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New v. State

Court of Appeals of Indiana

October 31, 2019

Leslie Michelle New, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff

          Appeal from the Orange Circuit Court The Honorable Steven L. Owen, Judge Trial Court Cause No. 59C01-1509-F5-854

          ATTORNEY FOR APPELLANT R. Thomas Lowe Lowe Law Office New Albany, Indiana.

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General Megan M. Smith Deputy Attorney General Indianapolis, Indiana.

          Crone, Judge.

         Case Summary

         [¶1] Leslie Michelle New appeals her convictions, following a jury trial, for level 5 felony criminal recklessness and class B misdemeanor resisting law enforcement. She asserts that the trial court abused its discretion in refusing to give one of her tendered jury instructions, and that her substantial rights were prejudiced as a result. She also asserts that the State presented insufficient evidence to support her convictions. We agree with New that the trial court abused its discretion in instructing the jury and that her substantial rights were prejudiced as to her criminal recklessness conviction. Accordingly, we reverse that conviction and remand for a new trial. We find that the State presented sufficient evidence to support New's conviction for resisting law enforcement, so we affirm that conviction.

         Facts and Procedural History

         [¶2] In the summer of 2015, New's five-year-old autistic daughter, M.N., began residing on a permanent basis with New's aunt and uncle, Barbara and Joe New, in their double-wide mobile home located on sixty-one acres of property in Paoli. Barbara and Joe had been close with M.N. since her birth and were willing to help New because she "was having a tough time." Tr. Vol. 3 at 86. New granted Barbara and Joe a power of attorney so that they could make decisions on M.N.'s behalf. During that summer, New did not visit her daughter much. When it was time to enroll M.N. in kindergarten that fall, New entered into a third-party custody agreement with Barbara and Joe so that they could enroll M.N. in school.

         [¶3] On Monday, September 14, 2015, New showed up unannounced to Barbara and Joe's house around 3:15 p.m. After New visited with M.N. for approximately one hour, Barbara informed New that M.N. was scheduled for her first gymnastics class at 5:00 p.m. Barbara had signed up for the gymnastics class to help M.N. socialize. The women began arguing after Barbara refused to tell New the location of the class because Barbara did not want New to come to the class and "cause problems." Id. at 103. New grabbed M.N.'s hand, led her to her vehicle, and placed the child in the front passenger seat. Barbara followed, asking New what she was doing, and telling her that M.N. had school the next morning. Barbara attempted to unbuckle the seatbelt and remove M.N. from the vehicle. Barbara was unable to get M.N. unbuckled and out of the vehicle, so she told New that she was going to call the police. Barbara closed the passenger door of the vehicle and walked around the back of the vehicle while dialing 911. Barbara stood behind the vehicle as Joe came outside and walked to the driver's-side door, trying to block New from entering the vehicle. Joe grabbed New's car keys out of her hand and yelled to Barbara that he had the keys. Still standing directly behind the vehicle, Barbara yelled back that New had another set of keys and that she could see that New was looking through her purse for the extra set.

         [¶4] New located her extra set of keys, got in the vehicle, locked the door, and started the engine. New put the vehicle in reverse and backed up, bumping into Barbara and knocking her to the ground. Barbara screamed, and New then pulled the vehicle forward, "circled through the yard[, ]" and drove away. Id. at 110. Barbara, who was still on the phone, told the 911 dispatcher that New had struck her with a vehicle and driven away.

         [¶5] Orange County Sheriff's Department officers responded to Barbara's call that "started out as a domestic issue over a child … and then at some point … changed and … became a hit and run." Id. at 240. As Chief Deputy Dennis Lanham was traveling to the scene, he observed a vehicle matching the description of New's vehicle driving in the opposite direction. Deputy Lanham initiated a traffic stop. When Deputy Lanham approached the vehicle, he noticed that New was driving the vehicle and that M.N. was in the front passenger seat. Deputy Lanham thought New behaved oddly because she "kind of just stared" at him and then asked him for his police credentials even though he had identified himself, was in full uniform, and was driving a marked police vehicle. Id. at 244. Deputy Lanham asked New several times to exit the vehicle so that he could speak to her about the incident with Barbara, but New just continued to stare at him. Deputy Lanham informed New that he was going to have to remove her from the vehicle. Once Deputy Lanham opened the driver's-side door, New finally complied and stepped out of the vehicle.

         [¶6] Deputy Lanham walked with New to the rear of her vehicle. New began stating that she could "fix this" and wanted to "go back" to Barbara and Joe's house to "straighten this out." Id. at 248-49. New then turned around and started walking back toward the driver's door. Deputy Lanham "got her by the arm, turned her back around and … started back around the vehicle again." Id. at 249. New pulled away from Deputy Lanham and tried to walk back toward the driver's door again. This "occurred three times" before Deputy Lanham "finally grabbed [New] by both shoulders, held her firmly against the vehicle and said, [']look, this has got to stop. … I can't have you going back to the car.[']" Id. at 249. New seemed to understand and "be okay[, ]" but as soon as Deputy Lanham relaxed his grip, "she attempted to go get in the car" a fourth time. Id. at 250. Deputy Lanham decided "there was no more talking to her and convincing her to comply," so he turned New around to put her in handcuffs. Id. New, who was "fairly strong[] for a small woman[, ]" resisted and struggled with Deputy Lanham as he attempted to place the handcuffs on her. Id. Another officer who had arrived at the scene had to help Deputy Lanham secure New. Deputy Lanham arrested New for resisting law enforcement, and she was transported to jail.

         [¶7] The State subsequently charged New with level 5 felony battery by means of a deadly weapon, class B misdemeanor criminal recklessness, and class A misdemeanor resisting law enforcement. Following a three-day trial, the jury found New guilty of criminal recklessness and resisting law enforcement, but not guilty of battery by means of a deadly weapon. The trial court imposed consecutive sentences of 180 days, with eighty-two days executed and ninety-eight days suspended, with credit for eighty-two days ...

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